– Our dignity as restored by a vote is under threat, by an encroaching judiciary –
In his prologue “Politics is in my blood” Kader Asmal asks a poignant question “can there be a more important human condition than dignity” he goes on and asserts without it we are bitter, downtrodden, unheard, humiliated, embarrassed and disempowered. With dignity, we are peaceful, collegial, kind, compassionate and even at times cohesive”. This assimilation of what dignity does and what the absence of such presents constitutes a crucial if not cardinal issue if we are celebrating our democracy today.
In a constitutional democracy where there are 3 arms of functioning namely the executive, legislature and the judiciary one can and must expect tension to be the order of the day when each acts by virtue of structure as a checks and balance of the other. This constitutes the axis of the dictum “separation of powers”.
In recent days we have heard and seen as warned by some of us much earlier that the lines between the executive and the judiciary are blurring. There are those who argue that our constitutional democracy stands alone in it’s own shadow and must be the ultimate final law that governs the expression of governance. Yet such constitutional democracy as underpinned by a judiciary must find expression meaning and purpose in tandem with the functional executive arm of government that is condensed in a parliamentary democracy in which the majority rules by way of vote.
The tendencies that are emerging is the judiciary becoming pliable in the hands of some who lack a parliamentary democracy voice and makes shortcuts to the proverbial Mt. Everest of governance by way of what I choose to call “court cased – democracy expressed in a worship of constitutionalism”.
I am on record for arguing that our constitution is not sacrosanct, and therefore is subject to be revisited as and when the need demands. It therefore must be tested from time to time and remains in that sense a work in progress. To think that 11 people who have their own convictions, political persuasions, ideologies, preferences and proclivities have the final power to rule laws that were adopted in parliamentary democracy, almost in a unilateral sense is seething to say the least. We have seen with the appointment of the Chief Justice how personality politics can on the part of the very Constitutional Court rear its head by articulations from members of the very court.
The president of the RSA in July at the Access to Justice conference is on record for saying “political disputes resulting from the exercise of powers that have been constitutionally conferred on the ruling party through a popular vote must not be subverted simply because those who disagree with the ruling party politically, and who cannot win the popular vote during elections, feel other arms of the state are avenues to help the co-govern the country. This interferes with the independence of the judiciary. Political battles must be fought on political platforms”.
The president repeated this challenge and he contends that the courts interfere with the power of government to make policy and those who disagree with the ruling party use the courts to co- govern the country.
Every analyst and public intellectual even jurist that have commented argues from the painted corner of fear, in which they want us to believe that this observation on the part of the president constitutes signs of disrespect for the “worshipped” judiciary. I am of the opinion that those who argue thus errs for their premise is informed by firstly seeing the executive as an enemy of democracy and equally the absolving of the judiciary from a conjoined role of proving less succinct and open to blur the lines too. It is simply disingenuous to argue that the judiciary at all levels are above reproach, totally unencumbered and less open for the very blurring of lines of authority.
We must not act as if we do not have judges and people in our judiciary that have proven less transformative. The transformation of the judiciary remains a contentious debate and a grave concern that cannot be wish-washed in the name of constitutionalism. It is mendacious to all of a sudden propagate our sitting judges on all benches have a pure intent for such transformation, it is sophistic to conclude that our judiciary ‘knows exactly’ what this country needs in democratic embrace the same as opposition parties would have us believe they are the legitimate custodians of our democracy when the people in the popular vote simply did not trust them with such mandate.
Kate O’Regan former justice in the Constitutional Court in the Sunday independent of last Sunday argues for that the separation of powers is necessary to provide checks and balances. She says “government conduct must have a legal foundation in the constitution or legislation” yet I want to add the judiciary conduct must have legal foundation in the same constitution that is to be interpreted sanguine with the aspect of equality as a non negotiable.
We understand that the bill of rights contains rights that are not absolute, which should not always take precedence over other concerns.
Yet when we argue as Asmal states “the notion of dignity resides at the very heart of our Constitutional settlement and is fundamental to our bill of rights. It is implicit in the right to equality”, the case then stands that if Apartheid stripped us from the very dignity it is voting in democratically setting that restores such dignity. This means we must at all times prove prudent, act defensive and be cautious that the power of the vote as an ultimate sign of such restoration of the quest for dignity is not obfuscated nor infringed or again disenfranchised in the name of constitutional efficacy.
This if not monitored may create a “tendency” in which some informed by resource, access and a conviction borne out of a “friendliness” or a make believe of “cohort oppositionalism informed by pervasive sentiment” would seek to approach the courts and use the judiciary to settle politically loaded battles. One senses that in South Africa today opposition parties and ideology based and driven NGO’s have found in their own eyes a friend in our judiciary. This found “friendliness” is what pubic intellectuals like Pierre de Vos uses as prove of a “progressive constitutional court” when it rules under a Deputy Chief Justice Moseneke in favour of Afri-Forum against affirmative action.
This tendency as articulated by a De Vos, is what sits behind my contention that apartheid may have it’s second coming when the sacrosanct vote of people as exemplified in parliamentary context be diminished by a conviction that the courts may arbitrate and turn down the very adopted policy frameworks or laws that lawmakers rightfully engage.
The question that needs answering is from where the comfort and confidence is derived that dictates every law can be derailed by constitutional approach.Therefore creating a co-governance model devoid of ballot recognition. Another issue it is no rocket science that if a Terry Crawford Browne as a millionaire can court case informed by his economic capacity laws or decisions that ultimately the means of having determines the power to engage the Constitutional Court the same a poor person who do not have the means may find much more difficult to attain. This means since we know now on average that whites own the economy and remain the highest per capita earners that they naturally have a been privileged by material means to ‘fight’ a case to the highest court as oppose to anyone else who are black in South Africa today.
The separation of powers is essential the lines between the arms are crucial in which encroachment must not be tolerated. There is a publically communicated view that such caution is the responsibility of government purely, yet I shall ask that the same conviction be served upon the judiciary to prove prudent not to be usurped as a means to arbitrate in “friendliness” to those who lost in a popular vote.
It is essential to always know the restoration of dignity is made manifest in the vote and that cannot be compared with anything else. Hence apartheid for all its evil intents exemplified, as the murderer of a people’s dignity cannot be allowed to live again, least at the hand of a judiciary who encroaches.
Bishop Clyde Ramalaine